Today the Institute for Justice has filed a Petition for Writ of Certiorari with the United States Supreme Court to appeal the decision of the 11th U.S. Circuit Court of Appeals and attempt to overturn Florida’s unconstitutional interior design law. This is an important case in the defense of free speech.

“Virtually everything an interior designer does—from consulting with clients about their personal tastes, to making design drawings, to giving advice—is just speech,” said IJ Senior Attorney Clark Neily in today’s press release. “The First Amendment prohibits the government from requiring aspiring interior designers to get a license before they can offer harmless advice to their customers.”

“IDPC attorney, Robert Kry, will be filing another amicus brief on behalf of the Interior Design Protection Council in support of the Institute for Justice petition,” said Patti Morrow, director of IDPC. “Florida’s anti-competitive, unnecessary interior design law cannot stand. We will do everything possible to support IJ’s efforts to re-establish freedom to design in Florida.”

“It was like a Saturday Night Live skit.”

That was typical of the many comments we received regarding ASID’s flop-of-a-press-conference held in Tallahassee yesterday. Here is a summary of the debacle.

Almost no one came out to hear what the Cartel had to say…

no designers other than their own cronies

few if any legislators

no mainstream news media or blogs

and only two local reporters, whose media decided not to run anything

In fact, the people in the conference area never even bothered to stop talking – there was so much ambient noise, one could barely hear what was being said.

Well, that would have been a blessing in disguise for the Cartel if not for the streaming video. . .

Don Davis, ASID’s national lobbyist, led the cache of Cartel speakers looking very ill at ease – probably because the audience just kept talking right over him. In his comments, he emphasized the same falsehoods that were publicized by ASID earlier in the week.

The first was the claim that interior design regulation regulation in Florida is voluntary and that anyone who would like to do interior design may do so. This is not true; Florida is one of only three states that have enacted a state-mandated regulatory scheme which prohibits unlicensed individuals from practicing commercial interior design. Mr. Davis’ deliberately misleading statement and additional ASID mistruths have been thoroughly, factually, and empirically debunked in detail here.

My colleague, Clark Neily says, “If Florida’s law is indeed voluntary, that will come as a huge surprise to IJ client Barbara Gardner and hundreds of others like her who received this letter from the BOAID’s prosecuting attorney, David Minacci, advising that it is illegal to offer “interior design” and “commercial design” services in Florida and demanding that they sign an affidavit in which they agree to “refrain from offering interior design and commercial design services” without a license and swear under oath that “interior design and commercial design services have not been provided . . . without proper licensure.” I further assume that Mr. Minacci and members of the BOAID will be investigated for their criminal conduct in making those misrepresentations to hundreds of people and businesses under color of law.

I further assume the BOAID will retract these false and misleading press releases regarding its apparently illegal enforcement action against Kelly Wearstler for ‘practic[ing] interior design in Florida without a license.’”

Mr. Davis went on to proclaim that if deregulation occurs, no one but architects would be able to practice interior design in a commercial setting or be able to pull permits for their projects. ASID continues to perpetrate this scare tactic even after it has been totally discredited here and here.

Mr. Davis’ claim that deregulation would create a monopoly for architects is absurd.
No clear-thinking legislator is going to be hoodwinked by ASID’s bait-and-switch tactics which falsely and unsuccessfully try to portray the Cartel as the victims in a monopoly scheme. To the contrary, what Florida has now is a state-sanctioned monopoly under which a mere 2,560 state-licensed interior designers are allowed to work in commercial spaces. Eliminating Florida’s interior design law will enable consumers to hire whomever they wish and require interior designers to compete on a level playing field in Florida the way they do in the 47 states that do not regulate interior design. Talented interior designers are flourishing in those states, as they will when Florida’s blatantly anti-competitive interior design law is repealed.

Alison Levy, a spokesperson for IIDA, claimed that deregulation would cost Florida consumers $51 million and result in layoffs because registered interior designers would not be able to offer commercial interior design services; however, that number appears to have been made up as she supplied not single statistic, documentation, or any verification whatsoever to support the assertion. More importantly, it’s just not true. Everything registered interior designers are doing today, they will be able to do if deregulated. They will be able to practice commercial design and they will be able to submit plans (albeit without a seal, which is not necessary for non-lifesafety work under the Florida Building Code Guidebook). Deregulation would create, not destroy, jobs, so no layoffs would occur. Whether or not the current licensed designers actually get/keep the commercial work once fair competition is allowed will depend solely on the merit of work produced, as in the 47 non-regulated states.

Ms. Levy claimed that Florida is currently not a regulated state. This is a serious misrepresentation of Statues 481which could have the chilling effect of leading to unlicensed practice resulting in additional disciplinary actions (in addition to the 600+ individuals who were victims of the “witch hunt”) at the hands of the BOAID’s ruthless prosecution firm.

Walter Dartland, a former employee in the Attorney General’s office was (unintentionally) hilarious! He talked in general about consumer issues (which of course, interior design is not). He indicated that interior designers are the functional equivalent of lawyers and should be regulated accordingly. Hmmm. I guess he didn’t hear Don Davis’ statement that they’re not regulated… He also railed against deregulation of movers and auto repair shops as the top recipient of consumer complaints. That’s it. Did ASID forget to tell Mr. Dartland the press conference was supposed to be about interior design?

Representative Van Zandt was undoubtedly the highlight of the press conference, and did the most to damage the credibility of the Cartel’s agenda to remove interior designers from the deregulation bill.

He went on and on about how the current regulated interior designers protect public safety, but gave no proof whatsoever – that’s because there is none, as proved hereandhere.

He mistakenly used the term interior “decorator” instead of “designer”

He stated there are 883 regulated firms with 11,000 employees, affecting another 46,000 jobs for a total loss of 60,000 jobs if deregulated. Again, no proof was offered. The truth is that those 60,000 jobs would still be viable, and in addition, hundreds of thousands more would be created by deregulation!

But by far the best of the best of Rep. Van Zandt’s belabored speech was his repeating again and again and again that registered interior designers are trained to provide interior architecture. In fact, at one point, he said something to the effect of “if deregulated, anyone would be able to design interior architecture.”

Seriously? As an architect of 40 years, Representative Van Zandt should know, that’s illegal in Florida! Statutes 481.223(1)(a) says “A person may not knowingly practice architecture unless the person is an architect or a registered architect.”

With no clear coordinated talking points, and each bumbling speaker contradicting the other, as amusing as it was for the Freedom Movement, the press conference had to be excruciatingly painful for the Cartel to watch.

On Tuesday, April 26, it was reported that the American Society of Interior Designers (ASID) and the International Interior Designers Association (IIDA) sent a joint letter to President Haridopolos and Speaker Cannon regarding the proposal to repealFlorida’s interior design law. The letter is largely fictitious and, as usual, provides no supporting data or references.

We believe that important policy decisions should not be made on the basis of unsubstantiated assertions or outright falsehoods. Accordingly, the Institute for Justice offers this response to the ASID/IIDA letter, complete with supporting data from which readers may draw their own conclusions. (A copy of this statement, with hyperlinks, is available at www.ij.org/ijresp_ASID_April26letter.)

ASID/IIDA Claim: “Currently interior designers are not required to be licensed by the state and are part of an already unregulated profession.”

Response: This claim is demonstrably false and contradicts ASID’s own statements in federal court.

Florida Statute § 481.223(1)(a) states that a person may not “[p]ractice interior design unless the person is a registered interior designer . . . .” Violation of that provision is a crime punishable by up to one year in prison.

The Department of Business and Professional Regulation’s website has a page that asks “What services require a state of Florida license? Interior Designers.” It goes on to explain that “If you are going to hire someone to design the interior of a commercial structure he/she needs to be licensed.

In a brief submitted to the 11th U.S. Circuit Court of Appeals in 2010, ASID described the issue as whether “Florida’s banon the unlicensed practiceof non-residential interior design” violates the U.S. Constitution and concluded by arguing that “Florida has a legitimate constitutional right to mandate that only a licensed interior designer . . . be permitted to practice interior design.”

The Board of Architecture and Interior Design has pursued disciplinary actions against more than 600 people and businesses for providing or offering to provide “interior and commercial design services” without a license and advises people that “only persons or firms licensed by the State of Florida may engage in the . . . activities” of “offering interior and commercial design services.”

Response: This claim is grossly misleading because it fails to provide necessary context.

Under current Florida law, interior designers are not authorized to sign and seal construction documents that affect structural, mechanical, ingress/egress, or other “lifesafety” systems. Construction documents that do not affect lifesafety systems do not have to be sealed by an architect, engineer, or other building professional and may be submitted by non-licensed persons at the discretion of local building officials.

Notably absent is any context or support for the tacit assertion that the livelihoods of commercial designers depend significantly on their ability to stamp and seal construction documents. In reality, interior designers are rarely called upon to sign and seal construction documents for permitting purposes on commercial projects.

Any concerns about the ability of interior designers to sign and seal construction documents can easily be addressed by other means than occupational licensure. Such language has been provided to the Legislature and could easily be implemented with support from ASID and IIDA, which they have so far withheld, presumably because their true concern is not signing and sealing construction documents but maintaining their government-backed monopoly on commercial design services inFlorida.

ASID/IIDA Claim: “Deregulation will cost Florida businesses tens of millions of dollars in increased costs to the consumer and lost revenues to the state” and “Florida businesses will suffer by paying an additional $50 million per year due to the elimination of competition for interior design.”

Response: These figures appear to be entirely made up.

In contrast, a study performed by economists at KenyonCollegecalled Designed to Exclude concluded that interior design regulations drive up prices, limit choices for consumers and disproportionately exclude minorities and older, mid-career switchers from the interior design field.

The number of state-licensed interior designers inFloridahas been steadily diminishing; the current figure provided by the Department of Business and Professional Regulation is 2,560 active registrations out of more than 5,800 that have been issued since 1994. The Department reports that approximately 60% of those 2,560 interior designers were grandfathered-in and do not possess the requisite statutory credentials for licensing.

Eliminating unnecessary statutory prerequisites for practicing interior design—prerequisites that most state-licensed interior designers do not even possess themselves—will expand opportunities and enable all interior designers to compete on a level playing field, just as they do in the 47 states that do not license the practice of interior design.

Conclusion

The letter submitted by ASID and IIDA to President Haridopolis and Speaker Cannon contains demonstrable falsehoods and unsupported assertions. We hope and expect that these groups will be asked to explain their misrepresentations and document their assertions and that their credibility will be judged according to the response they give—or fail to give.

Clark Neily, Senior Attorney at the Institute for Justice and member of IDPC Board of Directors will be a featured guest on Judge Napolitano’s program Freedom Watch, speaking out on the battle over interior design in Florida. IDPC has been working with Clark and our friends at IJ on regaining Florida designers’ rights for several years. We are just delighted at this new opportunity and Fox could not have chosen a better person to expose the misinformation that the Cartel has perpetrated on the public. GO CLARK!

I simply cannot wait to watch this program and hope you will join me!

Be sure to tune into Fox Business Channel tonight at 8pm or 11pm-and let your colleagues know!

Incredible PR spotlighting the intense battle that has been going on in Tallahassee for the last month.

Campo-Flores writes about the scenarios the Cartel has “conjured:”

flammable carpets

sparking infernos

bacterial fabrics that will contributing to the (baseless) assertion that 88,000 deaths will occur if deregulated

and our all-time favorite — the totally absurd implication that without licensing, jail furnishings would be turned into weapons.

Of course, no genuine evidence or facts were given to back up any of these so-called safety issues. That’s because none exists.

Licensed designer Michelle Earley is quoted as saying, “it only takes a couple things [sic] to go wrong for people to lose their lives.” Same old tired scare tactics. Ms. Earley is certainly entitled to her own opinion, but not her own set of facts.

There is not a shred of evidence that the 47 other states that do not regulate interior design have been responsible for a single interior design-related death. In fact, 12 government agencies have concluded just the opposite: http://www.idpcinfo.org/GovReports.html

As ususal, the Cartel cites disasters like the 1980 MGM fire as examples of “faulty interior design.” Not mentioned in the article are the facts that the incident had nothing to do with unqualified interior designer work is completely belied by a 2005 article in the Las Vegas Review Journal, which makes clear that the primary reason why the fire spread was a combination of

Summary of 11th Circuit US Appeals Court Decision

The Appellate Court upheld the Florida Interior Design Practice Act by finding that the Florida legislature could exercise its legislative authority by enacting design licensing if it concluded that such law was necessary. Essentially, the court said that they wouldn’t substitute their judgment for that of the legislature.

However, the Court did not apply the constitutional doctrine to the facts of the case. It is clear from the discovery that there is no indication whatsoever that the public is being protected by the law or that there is any harm to the public occurring that the law was designed to guard against.

Instead, the Court relied on a single self-serving statement made in the materials given to the legislature which had been carefully crafted by proponents of the law to support its request for licensing back in the 1980’s as evidence the that there was a “health, safety and welfare” concern that the law was designed to protect against. These materials contained no actual facts, statistics or empirical evidence which would support a conclusion that unregulated interior design places the public in jeopardy, but rather relied on rhetoric and scare tactics, which went uncontested, as was typical in the under-the-radar tactics to enact licensing schemes from 1970 through 2005.

Every state agency that has actually looked at this issue in response to the ASID-led Cartel’s incessant request for regulation has concluded that there is no public safety issue that is unprotected by the failure of the legislature to regulate designers beyond the laws that are already in place. The Florida Board of Architecture and Interior Design and the States own experts in the lawsuit filed by the Institute for Justice, admitted that the law has nothing to do with protecting the health, safety and welfare of the public. Most recently, in the course of discovery as part of the federal lawsuit challenging the constitutionality Florida’s interior design practice law, when questioned under oath, not a single proponent of the law could cite any benefits to consumers or harm that had occurred

The panel’s decision is riddled with factual and legal errors, ignores stipulated facts about the total lack of public safety concerns or public benefit, and — most importantly from the legal standpoint — directly conflicts with controlling case law that the panel didn’t even bother to cite. The inexplicable refusal to follow — or even acknowledge the existence of — binding legal precedent makes the decision ripe for review by the entire Eleventh Circuit Court of Appeals, and the Institute for Justice has filed an en banc petition to correct this extraordinarily misguided decision, and is committed to take it all the way to the Supreme Court if that’s what it takes to have binding case law correctly applied to the stipulated facts of this case.

The Interior Design Protection Council continues to support the work of the Institute for Justice and has filed an Amicus Brief in the en banc petition, which is also signed by eight supporting organizations.

11th Circuit US Court of Appeals, Montgomery, AL

November 2, 2010. Each side had 15 minutes to present their case, with an additional 3 minutes of rebuttal for the appellants.

Clark Neily presented a well-prepared and stellar argument on behalf of the appellants, stating first that Florida is one of only three states that regulate the practice of interior design, and that there were many areas of the Florida interior design law that violated constitutional rights as are outlined in his brief, but that he would focus his oral arguments on the issues of protected speech and the interstate commerce clause – areas where the state was unable to substantiate their defense.

Mr. Neily stated that there are 8 or 10 cases to support the appellants’ position. He further went on to inform the court that the law is not only burdensome on interstate designers like Juan Montoya, Kelly Wearstler who have been disciplined for practicing in Florida, but also impacts other industries, e.g. office furniture dealers who provide space planning, which is prohibited under the Florida law unless the company makes a licensed designer a principal of their company.

Judge Black asked about the state’s claim as to health, safety and welfare. Neily said there was no evidence that the unregulated practice of interior design jeopardizes the health, safety and welfare of the public, nor does it benefit the public in any way. The requirements are excessively burdensome, and the fact that 47 other states do not regulate and do not have problems conclusively proves it’s unnecessary and anti-competitive.

Neily also noted that the Supreme Court had made clear that the key inquiry in these cases is the “practical effects” of the challenged law, rather than the self-serving and reality-defying description of the law inevitably offered by the government when defending it in court

Jonathan Glogau, counsel for the state, attempted to defend the state’s position, but provided no evidence and crumbled under questioning by the judicial panel.

After his opening sentence affirming that the Florida law does not discriminate, Judge Black interrupted and asked him to respond to the appellant’s arguments that (1) FL law limits out-of-state practice unless they are a principal of the corporation, and (2) there is no health/safety/welfare threat and no benefits to the public.

Mr. Glogau said that the district court found no burden, and therefore the fact that there is no health/safety/welfare benefit really doesn’t matter because it’s secondary.

Mr. Glogau said that there are numerous building codes in Florida. Interior designers need to know the codes and that is the reason for licensure.

Judge Black cited Judge Hinkle’s statements relating to non-structural elements and furnishings and asked Mr. Glogau to define exactly what is a “non-structural element.” Mr. Glogau said that the dais in the courtroom would be a non-structural element. Judge Black said that was the example given to Judge Hinkle and asked him for an example other than a fixture.

Mr. Glogau shuffled his papers about a bit, looking for an answer, but seeing none, he had to reply that he didn’t know of another example.

Mr. Glogau then went on to define several examples of what architects do vs. what interior designers do. (Editor’s note: I found this part of his argument benefited the appellants’ argument because their scope of practice is exactly the same as 47 other states that do not regulate and have no issues).

Judge Cox asked him about the appellants’ Due Process claim, and has the Supreme Court applied it to this type of situation. Mr. Glogau said he did not know of any.

Mr. Glogau finished his argument with several minutes still left on the clock.

Mr. Neily had 3 minutes of rebuttal in which he emphasized his 3 main points:

Florida’s law imposes a substantial burden on interstate commerce by making it unduly difficult for out-of-state interior designers and other businesses to perform statutorily defined “interior design services” in Florida.

The state has provided no evidence in their defense, as it was required to do by controlling court precedent.

There are certainly less burdensome ways to protect the public, as is evidenced by 47 states that do not regulate the practice of interior design. Again, controlling case law provides that the existence of “less burdensome alternatives” for promoting the state’s asserted health and safety objectives renders the unduly burdensome law unconstitutional.

Mr. Neily addressed Judge Black’s question about examples of non-structural elements by pointing out that an office panel system was such an element, as was confirmed by the Declaratory Order issued by the BOAID in January 2009.

Mr. Neily finished by re-iterating that 47 states do not regulate interior design like Florida, citing an 11th Circuit case in which the court noted that the absence (or near absence) of similar laws, while not controlling, was a strong indication that the challenged law is “arbitrary and irrational.”

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I could not get a good feel for how the 3-judge panel felt about the case. On the one hand, if they actually take the time to study the briefs, then it should be a slam dunk for the appellants, because every legal point they need in order to win is supported by binding court precedent and the state stipulated that it has no facts to support its health, safety, and welfare assertions. But if the judges chose to disregard existing case law and the government’s admission that it has no evidence to support its case – which unfortunately does happen from time to time, especially in cases involving the constitutionality of economic regulations – then they might choose to uphold Florida’s interior design law. So in my non-lawyer opinion, right now it looks like a 50/50 shot that could go either way.

The Cartel’s Attack on Economic Liberty

For as long as there has been government, private industry groups have sought to manipulate the levers of power to promote their own selfish interests. In medieval Europe those efforts gave rise to the guild system; in England, they led to Royal monopolies on the sale of everything from wine to playing cards. Indeed, government-backed monopoly power was actually among the causes of the American Revolution; for example, the famous Boston Tea Party was actually a protest against a Royal monopoly granted to the East India Company on the importation of tea to the Colonies.

In throwing off the yoke of British rule, among the Founding Fathers’ goals was to substantially reduce the ability of government to play favorites in economic affairs, as the British government and corrupt local officials had been doing. The same is true of the Fourteenth Amendment, which was added to the Constitution following the Civil War with the specific purpose of securing key civil rights—including economic liberty—to all citizens, particularly newly freed African-Americans, whose ability to earn an honest living was nearly destroyed by the infamous Black Codes of the time.

Establishing the Freedom Movement

Not a week goes by that I don’t receive multiple inquiries as to why I became involved in fighting the interior design cartel and how the interior design Freedom Movement started. I’m not an attorney, not a lobbyist, never wanted to be a political activist. I’m just an interior designer who couldn’t bear to see the entire interior design industry destroyed. Yes, interior design is more than decoration, but it’s also more than just being able to read codes. All designers want their clients to be safe in their spaces, but our opponents’ drive to deny the aesthetic aspects of the profession smacks of lack of confidence in their ability, vision, and creativity.

I now find myself in a totally unforeseen career – educating, organizing and mobilizing grassroots and traveling the country with pink slingshot and pink boxing gloves in tow.

Last month, after sharing my story with a fellow designer, she said, “That’s so inspiring. You should write a book.” So after giving it some thought, I decided to craft not a book but instead a short autobiographical documentary which details my motivation, experience, and the pathway to protecting the design community’s rights to earn a living.

It’s been one wild rollercoaster ride, but second only to motherhood, no other endeavor has ever been so gratifying. I know, we’re not curing cancer or solving world peace, but saving thousands of jobs, well, that’s a good thing.